‘’An Accused Person Can Be Convicted For The Offence Of Rape With Uncorroborated Evidence’’

This appeal borders on the Offence of Rape. This is an appeal against the decision of the Court of Appeal affirming the decision of the Kano State High Court convicting and sentencing the appellant for the Offence of Rape.
The appellant and two others were charged before the High Court of Kano State with conspiracy, abduction, rape and illicit sexual intercourse of one Hindatu Sani (f), 16 years old. The offences are contrary to Sections 97(1), 273, 283 and 275 of the Penal Code respectively. There were 10 counts in all. The appellant was charged in counts 1, 2 and 7 with conspiracy, abduction and rape.
The prosecutrix, PW5, was allegedly abducted by the accused persons, kept by the appellant and passed around several police officers at different places for sexual intercourse without her consent. The appellant and his co-accused were found guilty by the trial Court, convicted and sentenced to various fines and terms of imprisonment.
The appellant’s appeal to the Court of Appeal was found to be unmeritorious and was dismissed. The judgment of the trial Court was affirmed.
Being dissatisfied with the decision of the Court of Appeal, the appellant further appealed to the Supreme Court.

Issues:
Appellant’s sole issue is whether the testimony of PW5 is sufficiently corroborated by the testimony of other witnesses?

Arguments
At the hearing of this appeal on December 14, 2017 Henry Akunebu learned counsel for the appellant adopted and relied on the appellant’s brief of argument filed on November 6, 2015. In the said brief, an outline of the case was presented, starting with an overview of the testimony of PW5.
PW5, it was pointed out, testified that she was coming on a motorcycle from Unguwa Uku at 9pm. At Kofar Nassarawa roundabout, they saw the first and second accused persons beside their police vehicle. The second accused person was the appellant at the instance of the motorcyclist, the PW5 alighted from the motorcycle and went off. The first accused person took the motorcycIe and asked the PW5 to join the police-vehicle to take her home.

Despite all protests, the first accused person took the PW5 in their vehicle to the Kwali Police Station housing Kwali Police Barracks. At the room, the first accused person asked her to sit down. As she sat down, he [the first accused person] locked her in the room. He later entreated her to eat the indomie which he bought. Her refusal to eat the said food prompted the first accused person’s threat to her.
Fully armed with a gun, he (the first accused person) slapped her, removed her veil, tearing her blouse in the process, and ravished her while she struggled with him. The ravishment resulted in her bleeding and stains on her body. The following morning, the first accused person called the third accused person who joined them in the room.

Both accused persons mocked her, locked her up in the room and equally, locked up the main entrance and left. In-the evening, the first accused person returned with one Aisha who gave her cloth to the PW5 whose cloth was stained she [PW5] bathed with water which Aisha supplied to her. After her bath at Aishas room, the first ‘accused person brought her back to their initial room locked the room up and ravished her [PW5] again while she bled
Both accused persons [first and second] took her away in a vehicle to GLO service station. They left her with one Shehu who equally, ravished her. In the morning, the first accused person came and took her away to the initial room where he, once more, ravished her while she bled and stained the cloth which Aisha gave her.

After multiple forcible sexual engagements with the accused persons and one Pele at different places, they took her in a Police vehicle to a political party office behind Jifatu stores. The accused persons later took the PW5 to Kwali PolIce station. Later fire service men took her to the hospital. The parents subsequently, reported the matter to the Kwali Police Station.
Counsel, citing Iko v State [2005] Vol 1 NCC 499, 501, submitted that the evidence of PW5 was suspect incredible and improbable and, so, cannot be corroborated, Iko v State (supra). He maintained that the said testimony was replete with improbabilities, Amodu v State (2012) 2 NWLR (pt 1177) 47, 57.
He pointed out that, at page 22 of the record, PW4 stated that the PW5 made a voluntary statement which was withheld never tendered, Goubada V State [2005] Vol 1 NCC 255, 258. He, therefore, submitted that the testimony of PW5 was incredible, weak and unreliable and could not be corroborated, Iko V State (supra). He maintained that neither the PW1’s testimony nor the PW2’s additional evidence, exhibit D2 could have corroborated the evidence of the PW5.

Placing reliance on the Court of Appeal decision in Tsoho v State (1986) 4 NWLR (sic) 710, he submitted that the totality of the evidence of the accused person must be considered for what is worth; however, in his submission, this was not done in the instant case. He canvassed the view that where there is an iota of doubt: as to whether an offence was committed, the doubt should be resolved in favour of the accused person, Isa V State [2008] 3 NCC 636; Onubogu and Anor v State (1974) 1 All NLR 5.
In his submission, the facts contained in the appellant’s additional statement do not lead conclusively to his guilt and do not eliminate other possibilities, Shehu v State (2010) 3 MJSC (pt 11) 74, 78 and, therefore, could not amount to circumstantial evidence, Shehu v State (supra)
Learned counsel maintained that where rape is denied, it is only medical evidence that could corroborate, Osu V State [2011] 3 NWLR (pt 1234) 393, 398. He maintained that the medical evidence, exhibit A, was wrongly admitted without the maker being called in evidence and without proper foundation laid in the absence of the maker, Section 50, Evidence Act, 2011.

Accordingly, he insisted that, since the maker of exhibit A did not appear in the court, his absence ought to have satisfactorily explained by a letter from his head of department, or telegram or a Gazette. In the absence of these, exhibit A was, in his submission, admitted without foundation and should be expunged, Dada V Bankole [2008] 3 MJSC 1, 6 Above all he pointed out that since exhibit A was an expert report, the expert ought to have appeared in court for cross examination, Idundun v Okumagba SC/309/74 (SC).
He canvassed the view that a medical report simpliciter cannot be cross examined, Idundun v Okumagba (Supra). He urged the court to expunge exhibit A. He further contended that, having been made about eight weeks after the incident, the said exhibit A was exposed to other possibilities, for instance, the chance of PW5 having sexual intercourse with other men other than the accused person.
He pointed out that the Prosecution’s case was devoid of any corroborative evidence. He explained that Aisha was not called in evidence, the cloth she gave to the PW5 neither had any blood stain nor sperm stain and the cloth the PW5 wore at first instance was never tendered, Goubadia v State (supra). He invited the court to hold that the case of the Prosecution was not corroborated, Oden v FRN (2005) 1 NCC 303, 308; Okeke V State [1995] 4 NWLR (pt 3930) 676; Akinyemi v State [1999] 6 NWLR (pt 607) 449 He urged the court to allow the appeal.

Resolution Of The Issue
At page 375 of the record the lower court responded thus to the submission that there was no corroboration on the evidence of PW5 and thus the evidence cannot ground conviction.
‘’ The learned trial Judge considered the necessity for corroboration and on pages 258-260, reviewed and evaluated the evidence of the witnesses and found that the evidence of the PW5 has been sufficiently corroborated by the evidence of the PW1, the PW2 and the medical report tendered as exhibit A and pieces of admission by the appellant himself. It has been held that the corroborative evidence need not consist of direct evidence that the accused person committed the offence nor does it amount to a confirmation of the whole evidence of the witness provided that it corroborates the evidence in some respect material to the charge in the issue, Edet Okon Iko v State [2001] 7} SCNJ 391. I am in agreement with the learned trial Judge that the evidence of PW5 was sufficiently corroborated’’.

Dealing with the question of corroboration, the learned trial Judge had proceeded thus; ‘’The evidence of PW1 corroborated the evidence of PW5, the victim when she told the court that the first and the second accused persons took her to an office near Jifatu stores where the second accused person forcefully had sexual intercourse with her. When he finished, they left her with Haruna (PW1) to buy her drugs which they later brought and took her back to Kwali Police Barracks where she was left in a room under lock by the first accused person. The second accused person who testified as Dw4 also admitted he collected the key from Haruna (PW1). He admitted her food he left with the Tea seller. He denied having sexual intercourse with her. In his statement, exhibit D2, the second accused said ‘that it was true I took Hindatu Sani, the complainant in this case to political party office behind Jifatu store, Zaria Road, Kano, I took her in our patrol vehicle and on arrival I told the man in charge of the place, one Haruna, to open the office for us. Then I enter (sic) into the house together with Hindatu and sat on the chair. The first accused [person] also in his confessional statement, exhibit C2, stated ‘Our Inspector, one Talle Mohammad {second accused) took her to Jifatu Side to a quarters located within the area.

All these facts have shown corroboration of the victims (PWS) (SIC) evidence by evidence of PW5, the first accused and the second accused …
The evidence of PW2 also corroborating the evidence of PW5 when she said the first accused person kept her in Kwali Police Barracks for about two weeks having sexual intercourse with her uncountable times Without her consent…
Counsel for the first accused person also submitted that in an allegation of rape there must be corroboration that is lacking in this case. Even if as the counsel wants the court to believe that there is no corroboration, which I hold there is, however in Ogunbayo v State (supra) it was held that it is not a rule of law that an accused person in a charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix,. There is no statute foisting on the prosecution a duty to provide evidence of corroboration before an accused person can be convicted for the offence of rape [pages 258-261; italics supplied for emphasis].

Learned counsel for the appellant, stridently sought to impugn the above finding of the lower court which affirmed the finding and conclusion of the trial court. The question is whether there is any merit in his submissions. As shown earlier in this judgement, the sole issue is woven around this issue of corroboration. The Simple answer is that there is no merit therein.
From the above excerpts of the Judgement of the trial court, duly, affirmed by the lower court, I do not entertain any doubt that the lower court were on firm footings in their findings and conclusions. As shown above, even prior to the amendment of the Evidence Act In 2011, the liberal posture of this court was that it was not the rule of law that, an accused person, in a charge of rape could not be convicted on the uncorroborated evidence of the prosecutrix, Shuaibu v State (supra) Iko v State (supra); Ogunbayo V State (supra); Habibu V State (supra) etc
In the circumstance, I endorse the concurrent findings of the lower court on the sole issue of corroboration presented for the determination of this appeal. There is no merit In the agitation of the appellant’s counsel. Accordingly, I enter an order dismissing this appeal. I hereby affirm the Judgement, conviction of, and sentence on the appellant. Appeal dismissed.